Summit Park Apts., L.L.C. v. Great Lakes Reinsurance
2016 Ohio 1514
Ohio Ct. App.2016Background
- Summit Park Apts. suffered a large fire in August 2012 and submitted insurance claims under a policy issued by Great Lakes Reinsurance (UK), PLC; litigation followed alleging breach of contract, declaratory relief, and bad faith.
- During discovery Great Lakes withheld five email communications (one with an attachment), asserting attorney-client privilege and/or work-product protection; the emails were submitted to the trial court in camera.
- A magistrate reviewed the documents in camera and concluded they were not privileged; the trial court adopted that decision without written findings of fact or conclusions of law. Great Lakes objected and appealed.
- The disputed items include: three email chains (GL001933-35, GL001938-41, GL001955-58) that were printed from an email account belonging to an unidentified person (Liana Sahakyan), one attorney-to-attorney/support email (GL001888), and one attorney-organized client activity record with email discussion (GL001969-70, including attachment).
- The trial court ordered disclosure; Great Lakes argued on appeal that (1) some emails were protected by attorney-client privilege, (2) some were protected work product, and (3) if an exception applied the bad-faith claim should be bifurcated and stayed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court's order denying privilege/work-product protection is appealable | Order is not final/appealable | Denial of privilege is final because disclosure destroys the privilege and cannot be remedied later | Court: order is final and appealable under R.C. 2505.02(B)(4) because privilege loss is irretrievable |
| Are GL001933-35, GL001938-41, GL001955-58 protected by attorney-client privilege | They are not privileged and must be produced | They are privileged communications | Court: record insufficient to decide; identity/role of third-party (Sahakyan) unknown; remand for factual findings |
| Are GL001888 and GL001969-70 protected (work product) despite bad-faith claim exception | Bad-faith claim permits disclosure | Emails/doc were work product (internal counsel materials) and not shown to evidence bad faith | Court: GL001888 and GL001969-70 are work product and not subject to the bad-faith exception; disclosure reversed |
| Whether trial court should have bifurcated/stayed bad-faith discovery if privilege denied | Bifurcation/stay required to protect privileged materials | No stay needed if discovery order proper | Court: moot after reversal/remand on privilege/work-product issues; not decided on merits |
Key Cases Cited
- Smith v. Chen, 142 Ohio St.3d 411 (Ohio 2015) (discusses when discovery orders denying privilege constitute final appealable orders)
- Ward v. Summa Health Sys., 128 Ohio St.3d 212 (Ohio 2010) (privilege issues in discovery reviewed de novo; factual findings afforded deference)
- Jackson v. Greger, 110 Ohio St.3d 488 (Ohio 2006) (R.C. 2317.02 provides testimonial privilege that applies during discovery)
- Squire, Sanders & Dempsey LLP v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (Ohio 2010) (work-product protection under Civ.R. 26(B)(3) and good-cause standard)
- Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209 (Ohio 2001) (attorney-client privilege does not protect communications used to further client bad faith)
- Morgan v. Eads, 104 Ohio St.3d 142 (Ohio 2004) (appellate courts cannot add facts not in trial-court record)